Plaintiffs
Jerome and Susan Weinmann brought this action under 42 U.S.C.
§ 1983 for injuries sustained by them when Jerome was
shot by Deputy Patrick McClone of the Waupaca County
Sheriff's Department. Deputy McClone shot Jerome while
responding to a call that Jerome had gone into his garage
with a gun intending to shoot himself. The Weinmanns allege
that Deputy McClone used excessive force against Weinmann in
violation of his rights under the Fourth Amendment. They also
asserted a claim against Waupaca County, but that claim was
dismissed on summary judgment. This order addresses several
motions in limine filed by McClone and taken under advisement
following a final pretrial conference held September 25,
2015.

I.
Entry to Garage

McClone
moves to preclude any " claim, statements or argument
challenging Deputy McClone's entry into the detached
garage where Weinmann was situated" on the night in
question. (Mot. ¶ 3, ECF No. 48.) McClone argues any
such claim, statement or argument would be improper because
the Weinmanns have not pled a claim for wrongful entry.

The
Weinmanns' claim is for excessive force under the Fourth
and Fourteenth Amendments. Such a claim requires showing
Deputy McClone used objectively unreasonable force,
considering all of the circumstances surrounding the use of
force. Graham v. Connor, 490 U.S. 386, 396, 109
S.Ct. 1865, 104 L.Ed.2d 443 (1989). That such circumstances
here include the manner in which McClone entered the garage
is clear from the Seventh Circuit's decision affirming
this court's denial of McClone's summary judgment
motion. SeeWeinmann v. McClone, 787 F.3d
444, 451 (7th Cir. 2015) (" Kicking down a door and
immediately shooting a suicidal person who is neither
resisting arrest nor threatening anyone save himself is an
excessive use of force. . . . McClone did not look through
the other windows into the garage to see what Jerome was
doing, nor did he try to talk to him. Instead, within three
minutes of arriving at the scene, McClone opened fire. Either
viewed as so plainly excessive that no analogous case is
needed, or viewed in light of existing authority, this was an
excessive use of force." ). Of course, the Seventh
Circuit's decision was based on a factual record in which
McClone conceded certain things for purposes of summary
judgment on his qualified immunity defense. At trial, McClone
will be able to present his side of the story. The Weinmanns
will too, however, and the circumstances leading up to the
use of force, including McClone's entry to the garage an
instant before he discharged his weapon, are relevant to
their claim.

McClone
also argues that " any claims, statements or arguments
that the entry itself by law enforcement into Plaintiffs'
garage, or the subsequent search or seizure of his person or
evidence, were illegal, or were improper" should be
precluded by collateral estoppel arising from a state trial
court order denying Jerome Weinmann's motion to suppress
in a prior criminal case. Jerome was charged with being a
felon in possession of a firearm following the incident in
question. He moved to suppress evidence including the gun,
arguing Deputy McClone should have obtained a warrant before
entering the garage. Waupaca County Circuit Court Judge
Phillip Kirk rejected this argument, finding instead that
McClone's actions were reasonable and his entry to the
garage was lawful based on exigent circumstances. (Hearing
Tr. at 31, Ford Aff. Ex. H, ECF No. 50-8.) Weinmann
ultimately pled no contest to and was convicted of this
offense, and he did not appeal the denial of his motion to
suppress. McClone argues that, given Judge Kirk's ruling
on the motion to suppress, the Weinmanns are precluded from
presenting evidence or arguing to the jury on a number of the
underlying issues before Judge Kirk, including how long
McClone was on the scene before entering the garage, whether
he got a search warrant, and more. ( See Mot. ¶
4(a)--( l ).)

"
[F]ederal courts must give a state court judgment the same
preclusive effect that it would receive under state
law." Wilhelm v. County of Milwaukee, 325 F.3d
843, 846 (7th Cir. 2003). Under Wisconsin law:

Issue preclusion addresses the effect of a prior judgment on
the ability to re-litigate an identical issue of law or fact
in a subsequent action. In order for issue preclusion to be a
potential limit on subsequent litigation, the question of
fact or law that is sought to be precluded actually must have
been litigated in a previous action and be necessary to the
judgment. If the issue actually has been litigated and is
necessary to the judgment, the circuit court must then
conduct a fairness analysis to determine whether it is
fundamentally fair to employ issue preclusion given the
circumstances of the particular case at hand.

In this
case, the issue for trial--whether Deputy McClone's use
of deadly force was excessive--was not " actually
litigated" in the previous case, where the issue on the
motion to suppress was about the reasonableness, for Fourth
Amendment purposes, of McClone entering the garage without
first obtaining a warrant. These are clearly different
issues. To say that exigent circumstances existed that
justified McClone's entry to the garage without first
obtaining a search warrant is not the same as saying that
McClone did not use excessive force in shooting Weinmann upon
entering the garage. As the Seventh Circuit explained in
affirming the court's denial of defendant's motion
for summary judgment, determining whether a state
officer's use of force is excessive for Fourth Amendment
purposes requires a balancing of " the nature and
quality of the intrusion on the individual's Fourth
Amendment interests against the countervailing governmental
interests at stake." 787 F.3d at 448 (quoting Graham
v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104
L.Ed.2d 443(1989)). In performing that balancing, that court
explained, the factfinder " should consider the facts
and circumstances of each particular case, including the
severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to
evade arrest by flight." Id. Ultimately, "
the question is whether the officers' actions are
'objectively reasonable' in light of the facts and
circumstances confronting them, without regard to their
underlying intent or motivation." Graham, 490
U.S. at 397.

Here,
the state court found that Deputy McClone was justified in
entering Weinmann's garage without first obtaining a
warrant under both the exigent circumstances exception to the
search warrant requirement and under the community caretaker
exception. Weinmann has indicated that he does not intend to
argue that Deputy McClone's entry was illegal, but claims
he must be able to put before the jury the circumstances
leading up to the shooting, including McClone's entry,
and should be free to argue that McClone acted unreasonably
in choosing to enter the garage at the time and in the manner
he did. I agree. Judge Kirk made no formal findings of fact,
other than to conclude generally that Deputy McClone acted
reasonably in entering immediately upon the belief that
Weinmann was in the process of committing suicide. Order
Denying Mot. for Reconsideration, ECF No. 50-7.

Equally
important, I conclude it would be unfair to bar Weinmann from
arguing that Deputy McClone's conduct leading up to the
shooting was unreasonable. As noted above, even if there are
common factual issues underlying both the excessive force
claim in this case and the illegal entry claim, Wisconsin
courts would not apply issue preclusion if the fairness
analysis convinces the court that it ...

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